Corsentino v. Cordova, 99SC111.

Docket NºNo. 99SC111.
Citation4 P.3d 1082
Case DateJune 26, 2000
CourtSupreme Court of Colorado

4 P.3d 1082

Dan CORSENTINO, Sheriff of the County of Pueblo, in his official capacity, Petitioner,
Alonso G. CORDOVA, Mark Allen Cordova, Theresa Marie Randall and Thomas Anthony Cordova, Respondents

No. 99SC111.

Supreme Court of Colorado, En Banc.

June 26, 2000.

Rehearing Denied July 31, 2000.

4 P.3d 1084
Vaughan & DeMuro, Gordon L. Vaughan, Shelby Felton-Schnack, Colorado Springs, Colorado, Attorneys for Petitioner

Cross, Bennett & Hessel, LLC, Joseph F. Bennett, Keith F. Cros, Colorado Springs, Colorado, Attorneys for Respondents.

Office of the City Attorney, City of Aurora, Charles H. Richardson, Robert M. Rogers, Julia A. Bannon, Aurora, Colorado, Attorneys for Amicus Curiae City of Aurora.

Sears & Swanson, P.C., Victoria C. Swanson, Colorado Springs, Colorado, Attorneys for Amicus Curiae for the Colorado Trial Lawyers Association.

Justice MARTINEZ delivered the Opinion of the Court.

Petitioner, Pueblo County Sheriff Dan Corsentino, challenges the court of appeals' decision, Cordova v. Pueblo West Metropolitan District, 986 P.2d 976 (Colo.App.1998), upholding the trial court's denial of his motion to dismiss a wrongful death action filed against him based on the actions of his employee, Deputy Sheriff Fred Cortese. In his motion to dismiss, Corsentino argued that the governmental immunity granted by the Colorado Governmental Immunity Act (GIA) to emergency vehicle operators barred the suit filed against him. The first of two issues raised by Corsentino asks us to decide the legal standard under the GIA for determining when an emergency vehicle operator faces an exigency that calls for immediate action. We are also called upon to determine whether an emergency vehicle operator exceeding the legal speed limit must comply with the condition of section 42-4-108(2)(c), 11 C.R.S. (1999), which allows an emergency

4 P.3d 1085
vehicle operator to speed "so long as said [operator] does not endanger life or property," in order to fall within the provisions of the GIA that grant immunity to emergency vehicle operators.1


On the afternoon of July 30, 1995, Cortese received a dispatch to a home burglary alarm. Cortese responded to the dispatch as an emergency call, using the sirens and lights of his sheriff cruiser. In route to the home burglary alarm, Cortese was driving south at a speed of 50 to 60 m.p.h. in a 35 m.p.h. speed zone.

While driving at this speed, Cortese approached an intersection at the same time that Erlinda Cordova was making a left turn in her car, crossing Cortese's path. The two cars collided. Before impact, Cortese still had his lights and sirens engaged, but did not slow down. As a result of the collision, Cordova received severe injuries that resulted in her death.

Under the doctrine of respondeat superior, Cordova's surviving husband and children (the Plaintiffs) filed a wrongful death action against Corsentino in his official capacity.2 The Plaintiffs alleged that Cortese's negligent actions caused Cordova's death while he was employed as Corsentino's deputy. Corsentino filed a C.R.C.P. 12(b)(1) motion to dismiss for lack of subject matter jurisdiction on the basis that Cortese had immunity as the operator of an emergency vehicle under the GIA.

After holding a hearing on the motion, the trial court denied Corsentino's motion to dismiss, ruling that Cortese did not qualify for immunity as the operator of an emergency vehicle under the GIA because he was not responding to an emergency call. The trial court found that home burglary alarms are too unreliable to constitute an emergency call.

As a separate basis for its ruling, the trial court held that Cortese did not qualify for the exception of section 24-10-106(1)(a), 7 C.R.S. (1999), through which the GIA grants immunity to emergency vehicle operators. In reaching its holding, the trial court applied the condition of section 42-4-108(2)(c), which allows an emergency vehicle operator to exceed the lawful speed limits "so long as said [operator] does not endanger life or property," to limit the emergency vehicle exception of section 24-10-106(1)(a). Because the trial court found that Cortese's "operation of his vehicle endangered life and property," it concluded that he did not qualify for the exception of section 24-10-106(1)(a).

Corsentino appealed the trial court's ruling denying his motion to dismiss. On appeal, Corsentino argued that the trial court used an improper standard for determining that Cortese was not responding to an emergency and that the trial court improperly applied the condition of section 42-4-108(2)(c) to limit the emergency vehicle exception of section 24-10-106(1)(a). The court of appeals did not address the issue of whether Cortese was responding to an emergency call. Instead, accepting the trial court's interpretation of the pertinent provisions, the court of appeals upheld the trial court's ruling because the record supported the trial court's finding that Cortese endangered life and property when he exceeded the speed limit. See Cordova, 986 P.2d at 979.

4 P.3d 1086

Our analysis begins with an outline of the pertinent statutory provisions, the issues presented, and the standard of review. We then address the proper standard for determining what constitutes an "emergency call" under the GIA. We complete our analysis by determining whether the "endanger life or property" condition of the traffic code applies to the immunity provisions of the GIA.


In response to our decision abrogating the governmental immunity of Colorado's common law, the General Assembly enacted the GIA in 1971. See Evans v. Board of County Comm'rs, 174 Colo. 97, 482 P.2d 968 (1971) (abrogating common law governmental immunity); ch. 323, sec. 1, §§ 130-11-1 to -17, 1971 Colo. Sess. Laws 1204, 1204-11 (enacting the GIA). The GIA generally establishes governmental immunity from suit in tort actions filed against public entities or their employees. See § 24-10-106. The GIA then withdraws and restores this immunity through a series of immunity waivers, exceptions to those waivers, and, in some cases, conditions relating to the exceptions.

Because the GIA's immunity derogates Colorado's common law, legislative grants of immunity must be strictly construed. See Bertrand v. Board of County Comm'rs, 872 P.2d 223, 227 (Colo.1994). As a logical corollary, we construe the GIA provisions that withhold immunity broadly. See Walton v. State, 968 P.2d 636, 643 (Colo. 1998); City & County of Denver v. Gallegos, 916 P.2d 509, 515 (Colo.1996) (Scott, J., dissenting) (quoting Bertrand, 872 P.2d at 229). As such, when deciding how to construe the waiver and exception provisions of the GIA, we look to the ultimate effect that each has on immunity.

Thus, although we construe the immunity waiver provisions broadly, see Walton, 968 P.2d at 643, we construe the exceptions to these waivers strictly because the ultimate effect of the exceptions is to grant immunity. We recognize that the approach we are taking to interpreting the waivers and exceptions of immunity, while consistent with our decision in Walton, conflicts with the approach we took in Gallegos.3 Without disturbing the interpretation of the term "public facility" that we proffered in Gallegos, we disapprove of the case's language that immunity waivers are to be construed narrowly. See 916 P.2d at 511; see also Flores v. Colorado Dep't of Corrections, 3 P.3d 464, 465 (Colo.App.1999) (noting the inconsistency between Gallegos and Walton in construing immunity waivers); Lawrence v. Buena Vista Sanitation Dist., 989 P.2d 254, 255 (Colo. App.1999) (same).

With these principles of statutory construction in mind, we turn to the specific provisions that are pertinent to this case. Section 24-10-106(1) provides, "A public entity shall be immune from liability in all claims for injury which lie in tort or could lie in tort. . . except as provided otherwise in this section." As relevant to this case, the GIA waives a public entity's immunity from tort actions for injuries resulting from "[t]he operation of a motor vehicle, owned or leased by [a] public entity, by a public employee while in the course of employment." § 24-10-106(1)(a).4

Section 24-10-106(1)(a) then creates an exception to the immunity waiver for "emergency vehicles operating within the provisions of section 42-4-108(2) and (3), C.R.S."5 That is, if an emergency vehicle operates within section 42-4-108(2) and (3), 11 C.R.S. (1999), the emergency vehicle operator qualifies for immunity by falling under the emergency

4 P.3d 1087
vehicle exception to the motor vehicle immunity waiver

Forming part of the Colorado Traffic Code, the referenced section 42-4-1086 specifically regulates the operation of emergency vehicles. In 1995, when the events of this case unfolded, the provisions provided:

(2) The driver of an authorized emergency vehicle, when responding to an emergency call, . . . may exercise the privileges set forth in this section, but subject to the conditions stated in this article. The driver of an authorized emergency vehicle may:
(a) Park or stand, irrespective of the provisions of this title;
(b) Proceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation;
(c) Exceed the lawful speeds . . . so long as said driver does not endanger life or property;
(d) Disregard regulations governing directions of movement or turning in specified directions.
(3) The exemptions granted in paragraphs (b) to (d) of subsection (2) of this section to an authorized emergency vehicle shall apply only when such vehicle is making use of audible and visual signals.. . .

§§ 42-4-108(2) & (3), 17 C.R.S. (1995 Supp.) (emphasis added).

In summary, section 24-10-106 grants immunity to public entities and their employees generally. The motor vehicle immunity waiver of section 24-10-106(1)(a) takes away this immunity for the operation of motor vehicles by public entities and...

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